CITATION: Kovacevic v. Kovacevic, 2022 ONSC 6839
DIVISIONAL COURT FILE NO.: 486/21
DATE: 20221206
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
RSJ Firestone, Stewart, and Akhtar JJ.
BETWEEN:
SUZANA KOVACEVIC
Applicant
– and –
EMIR KOVACEVIC AND THE HUMAN RIGHTS TRIBUNAL OF ONTARIO
Respondents
Suzana Kovacevic, Self-Represented
Marek Tufman, for the Respondent, Emir Kovacevic
Jason Tam, for the Respondent, the Human Rights Tribunal of Ontario
HEARD at Toronto via videoconference on: June 20, 2022
REASONS FOR DECISION
By the Court:
Nature of the Application
[1] Suzana Kovacevic (the “Applicant”) has brought this application for judicial review of two decisions of the Human Rights Tribunal of Ontario (the “HRTO”). The first decision (the “Decision”) is that dated January 14, 2020 of Vice-Chair Eban Bayefsky (the “Tribunal”) who found that the Applicant had breached an agreement to settle her complaint to the HRTO against Emir Kovacevic (the “Respondent”) and, as a consequence, ordered her to re-pay to the Respondent the sum of $15,216.00 that the Respondent had advanced to her under the terms of the settlement. The second decision (the “Reconsideration Decision”) is the Reconsideration Decision dated May 25, 2021 of Member Marla Burstyn who dismissed the Applicant’s request for reconsideration of the Decision.
[2] The Applicant seeks an order from this Court quashing both decisions as being unreasonable. She further submits that she was denied procedural fairness by the HRTO during the proceedings before it.
[3] The Respondent submits that the application lacks all merit and asks that it be dismissed.
[4] The HRTO takes no position on the merits of the application but provided a factum to set out the relevant legislative authority and the process by which the HRTO dealt with the Applicant’s complaint. Counsel for the HRTO attended at the hearing of this application to provide such assistance to the Court as might be appropriate.
Background
[5] Despite the fact that the Applicant and Respondent share the same surname, they are not related.
[6] The Applicant lodged a complaint with the HRTO against the Respondent alleging conduct which she claimed violated her rights under the Human Rights Code, R.S.O. 1990, C. H. 19 (the “Code”) and for which she sought compensation from him.
[7] During the course of the HRTO proceedings, on June 20, 2018 a settlement of the Applicant’s complaint was arrived at by the parties on June 20, 2018, reduced to writing and signed by them. The terms of the settlement agreement provided that the Applicant would not disclose its terms to any third parties, defame or disparage the Respondent, or advance any of the claims made by her in the HRTO proceedings in any other proceedings pursued by her. A comprehensive release of her claims as made to the HRTO was provided by the Applicant to the Respondent as part of the settlement.
[8] On the day after signing the documentation recording the terms of settlement and the provision by her of an executed release, the Applicant amended her pleadings in the civil proceedings she had commenced against the Respondent and her former employer to include issues and allegations that had been raised in the HRTO proceedings and resolved in the settlement.
[9] Section 45.9(3) of the Code provides that, if a settlement of an application to the HRTO is agreed to in writing and signed by the parties, a party who believes that another party has contravened such settlement may make an application to the Tribunal for relief. If the HRTO determines that a party has contravened the settlement, the HRTO may make any order that it considers appropriate to remedy the contravention.
[10] In accordance with Section 45.9(3) of the Code, the Respondent filed an application with the HRTO claiming that the Applicant had contravened the terms of the settlement and stating that he was withholding the settlement funds to be paid to the Applicant in accordance with the terms of settlement until his application could be determined. The Applicant also filed an application alleging that the Respondent had breached the settlement by failing to pay her the funds required by it by the deadline established in that agreement.
[11] The Respondent paid the funds required under the terms of the settlement, with interest, to the Applicant prior to the hearing of his application.
[12] These two applications, each alleging a breach of the settlement by the other party, were ultimately consolidated for hearing together. The parties were advised of the consolidation and the relevant procedures to be followed by letters from the Registrar of the HRTO dated September 10 and 28, 2018. A separate complaint by the Applicant against her former employer was ordered to proceed separately.
[13] A hearing was scheduled to take place before the Tribunal on September 5, 2019 to deal with both applications. The parties had been notified of the hearing date and start time several months in advance by means of a Notice in writing dated January 22, 2019. That Notice further provided that all documents to be relied upon by either party were to be filed by no later than August 6, 2019.
[14] The hearing was convened as scheduled before the Tribunal. Although the Applicant requested an adjournment, or a stay of the hearing, on the basis of her claim that she had not expected both applications to be heard together and had not received the Respondent’s documents by registered mail as she had demanded, her requests were denied.
[15] Following the denial of the Applicant’s requests, she asked the Tribunal to recuse itself on grounds of bias. This request was also denied.
[16] Following the hearing of evidence and submissions, including a review of the settlement documentation and the voluminous materials filed by the Applicant in support of her civil proceedings in the Superior Court of Justice against the Respondent, on January 14, 2020 the Tribunal issued its Decision dismissing the Applicant’s application, and agreeing with and allowing the position advanced on behalf of the Respondent in his application. The Tribunal ordered the return to the Respondent of all funds paid to the Applicant in furtherance of the settlement as a consequence of her conduct.
[17] The Applicant sought a reconsideration of the Decision. In the Reconsideration Decision dated May 25, 2021 arrived at by a different member of the Tribunal, the Applicant’s request for reconsideration was dismissed.
[18] The Applicant has not complied with the Tribunal’s order of January 14, 2022 to repay the settlement funds to the Respondent.
[19] Instead, the Applicant has applied to this Court for judicial review of both decisions.
Jurisdiction
[20] The Divisional Court has jurisdiction to hear applications for judicial review of decisions of the HRTO under ss. 2 and 6 of the Judicial Review Procedure Act, R.S.O. 1990, c. J. 1.
Standard of review
[21] The standard of review of decisions of the HRTO is reasonableness (see: Ontario (Health) v. Association of Ontario Midwives, 2022 ONCA 458).
[22] For any issue of procedural fairness, there is no specific standard of review. The court will evaluate whether there has been a breach of the duty of procedural fairness and assess the circumstances and context (see: London (City of) v. Ayerswood Development Corp., 2002 3225 (ON CA)).
Discussion
[23] Both the Applicant and the Respondent claimed contraventions of the settlement entered into by them. The Applicant alleged that the Respondent failed to pay the agreed-on amount under the settlement. The Respondent submitted that he had eventually paid the required amount, but he sought the return of the funds due to the Applicant’s flagrant breach of the settlement and the terms of the release in favour of the Respondent that had been provided by her as part of the final resolution of her HRTO complaint.
[24] In particular, the Respondent alleged that the Applicant breached three components of the settlement: (1) her agreement to release and forever discharge the Respondent from claims arising out of events covered by the settlement and not pursue them elsewhere; (2) her agreement not to disclose the terms of the settlement; and (3) her agreement not to defame or disparage the Respondent.
[25] The Decision includes preliminary procedural rulings which the Applicant attempts to characterize as being procedurally unfair.
[26] First, the Applicant’s request to stay or adjourn the hearing was refused.
[27] The Tribunal found that the applications had been ordered to be heard together. The Tribunal also found that the Respondent had served his materials properly and that they had been received by the Applicant. There was no basis to stay or otherwise delay the hearing either to hear one of the applications separately or to allow the Applicant to appeal the Tribunal’s ruling on the service of documents. The issues were straightforward, and the Respondent wished to proceed.
[28] Next, the Applicant’s request that the Tribunal be recused for bias was found to have no air of reality. Her claims that she had been subjected to “prejudiced, biased, bullying, and unfair treatment” were rejected as unfounded. The Tribunal noted in the Decision that when one simply disagrees with the decision, a reasonable apprehension of bias does not arise.
[29] As was stated by the Tribunal in dealing with the request for recusal:
In my view, Ms. S.’s allegations of mistreatment are simply not true. There is not, in the words of the relevant cases, an “air of reality” to her allegations of bias. Her concerns arise in large measure from my having denied her preliminary objections, and her unwillingness to then proceed with the hearing on the merits. As Justice McKelvey pointed out, personal opinions as to the quality and correctness of an adjudicator’s decisions do not support a conclusion that there was a reasonable apprehension of bias. In my view, an informed person, viewing the matter realistically and practically, and having thought the matter through, would not conclude that it is more likely than not, whether consciously or unconsciously, that I may not have decided, or will not now decide, the case fairly.
[30] We find that there is no basis upon which the procedural rulings or refusal to recuse could be considered unfair to the Applicant. With respect to the former, the Applicant had ample notice and disclosure before the hearing commenced, and the Tribunal was entitled to manage its own process in requiring the hearing of both applications to proceed as had been ordered and scheduled for several months.
[31] With respect to the refusal to recuse, there is nothing in the record or the Applicant’s submissions that gives rise to any real or reasonable apprehension of bias on the part of the Tribunal. The Tribunal applied the correct test in assessing the Applicant’s request, and the rejection of it was entirely fair and reasonable.
[32] Accordingly, we would not give effect to these aspects of the Applicant’s request for judicial review.
[33] The Applicant was found by the Tribunal to have breached both the substance and spirit of the settlement and release. The Applicant had amended the pleadings in her civil action against the Respondent the day after signing the settlement and release to include some of the very issues and allegations contained and resolved in her HRTO application. While the settlement documentation provides that the parties are free “to advance reasonable positions and/or defences” in the civil action, the Tribunal determined that this qualification did not permit the Applicant to advance in another forum the same issues and allegations in the HRTO proceeding that were intended to be resolved by them through the settlement agreement and released as part of the settlement.
[34] Additionally, the Tribunal found that her comments in the civil lawsuit and communications with the Respondent and his lawyer breached the non-disparagement clause in the settlement. However, the Tribunal did not consider that the Applicant’s breach amounted to a violation of her non-disclosure obligations.
[35] The Applicant’s application for contravention of the settlement by the Respondent was dismissed. The settlement funds had been paid by the Respondent and his compliance with the settlement terms had therefore been adequate.
[36] Based on these findings, which were amply supported by the documentary evidence before the Tribunal, the Applicant was ordered to return the funds paid as part of the settlement. No additional amounts, as had been requested by the Respondent, were ordered to be paid to him.
[37] In our opinion, the Tribunal’s Decision with respect to both applications was reasonable. In carefully-considered reasons, the Tribunal indicated a thorough review of the relevant evidence of the terms of the settlement and whether the Applicant’s conduct had constituted a breach. The same approach was taken to the allegation that it was the Respondent who breached the settlement. The determinations as arrived at were set out coherently and we see no available foundation upon which interference upon judicial review would be justified (see: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65).
[38] Member Burstyn then denied the Applicant’s request for reconsideration because the Applicant had not established the existence of any of the criteria in Rule 26 of the HRTO’s Rules of Procedure that would form the proper basis for a reconsideration. Member Burstyn was not satisfied that any new facts or evidence that the Applicant put forward could not have reasonably been obtained earlier, that the Applicant did not have adequate and fair notice of the procedure to be followed at the hearing, or that any other grounds existed to justify changing the result.
[39] We consider the Reconsideration Decision to be manifestly reasonable. It is supported by the record of evidence upon which it was based and was in accordance with the considerations that apply to such a reconsideration. Interference with it by way of judicial review is not, in our view, available to the Applicant.
Conclusion
[40] For these reasons, this application is dismissed.
Costs
[41] The Respondent Emir Kovacevic has been successful on this application and is entitled to an award of costs. The Respondent HRTO does not seek costs.
[42] In all of the circumstances, costs of $5000.00, inclusive of all disbursements and applicable taxes, is a fair and reasonable amount for him to recover. Accordingly, the Applicant shall pay that amount of costs to the Respondent Emir Kovacevic within 60 days of the date of this decision.
Firestone RSJ.
Stewart J.
Akhtar J.
Released: December 6, 2022
CITATION: Kovacevic v. Kovacevic, 2022 ONSC 6839
DIVISIONAL COURT FILE NO.: 486/21
DATE: 20221206
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
RSJ Firestone, Stewart, and Akhtar JJ.
BETWEEN:
SUZANA KOVACEVIC
Applicant
– and –
EMIR KOVACEVIC AND THE HUMAN RIGHTS TRIBUNAL OF ONTARIO
Respondents
REASONS FOR DECISION
Released: December 6, 2022